December 21, 2021 – Due to the ongoing pandemic, federal contractors nationwide – and the attorneys who represent them – have been closely monitoring the government’s implementation of a vaccine mandate. The potential of an enforceable mandate has left contractors wondering whether they would be subject to sweeping vaccine requirements if they want to continue performing contracts for the government. In the last few weeks, the federal courts have delivered what is, for now, a decisive answer as to whether federal contractors throughout the United States would be subject to a vaccine mandate: “No.”
On December 7, 2021, the U.S. District Court for the Southern District of Georgia issued a preliminary injunction blocking the government’s enforcement of the federal contractor vaccine mandate set forth by the Biden administration. The court’s decision effectively expanded a November 30, 2021 order from the U.S. District Court for the Eastern District of Kentucky that granted a preliminary injunction halting the federal vaccine mandate in Kentucky, Ohio, and Tennessee.
In Commonwealth of Kentucky v. Biden, the Eastern District of Kentucky addressed whether a president can use congressionally delegated authority to impose vaccines on the employees of federal contractors and subcontractors. The preliminary injunction challenged Executive Order 14042, which tasked the Federal Regulatory Council (the “Council”) with amending the Federal Acquisition Regulations (FAR). On September 30, 2021, the Council issued a memo mandating contractor and subcontractor compliance with the vaccine mandate (the “FAR Memo”). The vaccine requirement officially applied to: (1) contracts awarded on or after November 15, 2021; (2) new solicitations issued on or after October 15, 2021; and (3) extensions to or renewals of existing contracts exercised on or after October 15, 2021. The Council also attached a deviation clause to the guidance that contractors were encouraged to insert into their current contracts.
The Eastern District of Kentucky first addressed the issue of standing. The court found that, in essence, the FAR Memo forced contractors and subcontractors with existing federal contracts to include a vaccine mandate in their current contracts by adding a deviation clause to those current contracts. Specifically, the court held that contractors who refused to include a deviation clause were faced with a Hobson’s choice – add the vaccine mandate to current federal contracts by the way of the deviation clause or lose out on future federal contracts. The court ruled that the plaintiffs sufficiently demonstrated that they suffered an injury in fact that was fairly traceable to the defendants’ actions, and that enjoining the vaccine mandate would redress the plaintiffs’ injuries.
Moving past the issue of standing, the court held that the Biden administration’s actions were not arbitrary and capricious, but that the president exceeded his authority under the Federal Property and Administrative Services Act (FPASA). The court rejected the defendants’ argument that the nexus between the vaccine mandate, economy, and efficiency in federal contracting “is self-evident.” In doing so, the court found that it strained credulity that Congress intended the FPASA, a procurement statute, to be the basis for promulgating a public health measure such as mandatory vaccinations. Accordingly, the court granted the plaintiffs’ requested preliminary injunction, indicating that the injunction only applied to the named plaintiffs.
Dealing with another request for a preliminary injunction in Georgia v. Biden, the Southern District of Georgia cited Commonwealth of Kentucky v. Biden and came to a similar conclusion. The court addressed the issue of standing and determined that the Board of Regents of the University System of Georgia had standing because it showed that one of its institutions was a finalist for a contract with NASA and was advised that, if awarded the contract, the contract must include a clause recognizing the vaccine mandate.
Like the Eastern District of Kentucky, the Southern District of Georgia addressed the president’s reliance on the FPASA. The court held that Congress did not clearly authorize the president to issue the kind of mandate set forth in Executive Order 14042 as the Order goes “far beyond addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting, and instead, in application, works as a regulation of public health, which is not clearly authorized under the [FPASA].” Rather than the relatively limited injunctive relief granted by the Eastern District of Kentucky, the Southern District of Georgia instructed that its injunction had nationwide applicability as limiting the relief to the parties before the court “would prove unwieldy and would only cause more confusion.” As such, the court effectively halted the government’s enforcement of the federal contractor vaccine nationwide.
With the Southern District of Georgia’s injunction, government contractors are not required to comply with the federal vaccine mandate. That being said, there are other lawsuits related to the federal vaccine mandate pending throughout the country. Contractors should be prepared for the possibility of a court decision supporting the mandate or an appeal reversing one or both of the cases discussed above. Further, the Biden administration continues to seek a means by which to enforce a vaccine mandate on federal contractors. Considering the ongoing pandemic and the Biden administration’s efforts to ensure vaccine compliance, contractors and subcontractors should seek legal advice if they have any questions regarding their vaccine policies or current guidance from the government. But, for the time being, federal contractors can continue operating their businesses in the same manner they did prior to the government’s vaccine mandate.
Ulmer’s Government Contracting Practice Group is closely monitoring developments related to the COVID-19 pandemic and is ready to provide strategic advice and counseling during these uncertain times. Please reach out to our attorneys if you have any questions.
The information provided in this client alert speaks only to the information and guidance we have available as of the date of publication and is subject to change. We will continue to follow further issued guidance and regulations and endeavor to post those updates via our website. Please continue to follow these updates at ulmer.com. This legal update was created by Ulmer & Berne LLP, and is not intended as a substitute for professional legal advice. Receipt of this client alert, by itself, does not create an attorney client relationship. For any questions, or for further information, please contact Halden R. Schwallie at email@example.com.